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🗞️ Pfizer Arbitration Confidentiality Clause Survives NLRB Challenge

The NLRB dismissed an unfair labor practice complaint against Pfizer, finding that the Federal Arbitration Act shields arbitration confidentiality clauses from NLRA challenge — even when imposed as a condition of employment.

onthelaborfront

11 Mar 2026 — 4 min read

On March 4, 2026, the National Labor Relations Board issued a supplemental decision in Pfizer, Inc., 374 NLRB No. 55, dismissing a complaint that Pfizer had violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by requiring employees to sign a "Mutual Arbitration and Class Waiver Agreement" containing a broad confidentiality clause as a condition of continued employment.

The clause required employees to keep all aspects of any arbitration proceeding — including discovery, submissions, hearings, and awards — confidential, with narrow exceptions for litigation related to the arbitration itself. A carve-out sentence stated that nothing in the provision would prohibit employees from engaging in protected discussions about wages, hours, or other terms and conditions of employment.

The Board majority applied its 2020 precedent in California Commerce Club, Inc., 369 NLRB No. 106, which held that arbitration confidentiality provisions are shielded by the Federal Arbitration Act (FAA) to the extent they specify "the rules under which arbitration will be conducted." Because Pfizer's clause was limited to the arbitral proceeding itself — encompassing discovery, hearings, and awards — the Board found it fell within the FAA's protective scope and had to be enforced according to its terms. The Board further noted that the clause's explicit carve-out for protected workplace discussions reinforced its narrow scope.

The case had a lengthy procedural history rooted in the Supreme Court's 2018 decision in Epic Systems Corp. v. Lewis, 584 U.S. 497, which upheld class and collective action waivers in employment arbitration agreements and established that the FAA generally prevails over NLRA-based challenges to arbitration procedures. Following Epic Systems, the Board dismissed the class waiver allegation against Pfizer but remanded the confidentiality clause issue for analysis under the Boeing Co. framework for evaluating facially neutral workplace rules. Administrative Law Judge Keltner W. Locke, on remand, applied Boeing and found the confidentiality clause to be a Category 3 violation — unlawful because it directly chilled employees' core Section 7 right to discuss working conditions, and Pfizer's asserted justification of fostering "trust" in arbitration was too vague to outweigh that harm. The Board majority reversed, concluding that California Commerce Club — not Boeing — controlled the outcome.

Member David Prouty concurred in the result only because California Commerce Club remained binding precedent without a three-member majority to revisit it. In a notable separate opinion, he argued that California Commerce Club was incorrectly decided: employees' right to freely discuss workplace conditions is a well-established substantive Section 7 right, not a procedural one, and the FAA does not require enforcement of contract provisions that would be unlawful in any other employment context. Prouty further argued that, unlike the bilateralism at issue in Epic Systems, confidentiality is not a fundamental attribute of arbitration, meaning the FAA offers no special protection for it.

The decision leaves intact the Board's position, established in California Commerce Club and reinforced in Dish Network, LLC, 370 NLRB No. 97 (2021), that arbitration confidentiality provisions limited to the proceeding itself are lawful under the FAA — while provisions that extend beyond the proceeding, such as requirements that settlement terms be kept confidential, have been found to violate the NLRA.

Key Points

Pfizer required all employees to sign an arbitration agreement as a condition of continued employment starting May 5, 2016; employees who continued to work for 60 days after receipt were deemed bound, regardless of whether they signed.
The confidentiality clause covered all aspects of arbitration — discovery, hearings, submissions, and awards — while expressly preserving employees' right to discuss wages, hours, and other terms and conditions of employment.
The Board majority dismissed the complaint, holding that the FAA shields arbitration confidentiality provisions limited to the rules of the proceeding, following California Commerce Club, Inc. (2020).
The class action waiver in Pfizer's agreement was separately resolved — and upheld — based on the Supreme Court's Epic Systems Corp. v. Lewis (2018) decision.
ALJ Locke found the clause unlawful under the Boeing balancing framework, classifying it as a Category 3 work rule that impermissibly chilled core Section 7 rights; the Board reversed.
Member Prouty's concurrence signals ongoing internal disagreement about whether California Commerce Club correctly weighs the tension between the FAA and employees' substantive NLRA rights.
Settlement confidentiality is a distinct issue: per Dish Network, LLC (2021), confidentiality requirements that extend to settlement terms — as opposed to the arbitral proceeding itself — have been found to violate the NLRA and are not shielded by the FAA.
Scope matters for both parties: even where a confidentiality clause is FAA-protected, employees retain the right to discuss terms and conditions of employment obtained independently of the arbitration, and disciplining an employee for doing so remains an NLRA violation.

Source Information

Primary Source Authors: Members James R. Murphy and Scott A. Mayer (majority); Member David M. Prouty (concurrence); ALJ Keltner W. Locke (Supplemental Decision)

Primary Source: Pfizer, Inc., 374 NLRB No. 55 (March 4, 2026)

Primary Source Link: NLRB Case 10-CA-175850